Legislative history

Repealed and replaced by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (effective 6 November 2016).

Immediately prior to the repeal the provision was in the following form:

(1A) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorisation to the corporation:

(a) to make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding would be, or might be, a cartel provision; or

(b) to give effect to a provision of a contract, arrangement or understanding if the provision is, or may be, a cartel provision;

and, while such an authorisation remains in force:

(c) in the case of an authorisation to make a contract or arrangement, or to arrive at an understanding—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not prevent the corporation from making the contract or arrangement, or arriving at the understanding, in accordance with the authorisation; or

(d) in the case of an authorisation to give effect to a provision of a contract, arrangement or understanding—sections 44ZZRG and 44ZZRK do not prevent the corporation from giving effect to the provision in accordance with the authorisation.

(1) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation:

(a) to make a contract or arrangement, or arrive at an understanding, where a provision of the proposed contract, arrangement or understanding would be, or might be, an exclusionary provision or would have the purpose, or would have or might have the effect, of substantially lessening competition within the meaning of section 45; or

(b) to give effect to a provision of a contract, arrangement or understanding where the provision is, or may be, an exclusionary provision or has the purpose, or has or may have the effect, of substantially lessening competition within the meaning of section 45; and, while such an authorization remains in force:

(c) in the case of an authorization to make a contract or arrangement or to arrive at an understanding—subsection 45(2) does not prevent the corporation from making the contract or arrangement or arriving at the understanding in accordance with the authorization and giving effect in accordance with the authorization to any provision of the contract or arrangement so made or of the understanding so arrived at;

(d) in the case of an authorization to give effect to a provision of a contract:

(i) the provision is not unenforceable by reason of subsection 45(1); and

(ii) subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization; or

(e) in the case of an authorization to give effect to a provision of an arrangement or understanding—subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization.

(5) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person:

(a) to require the giving of, or to give, a covenant where the proposed covenant would have the purpose, or would have or might have the effect, of substantially lessening competition in a market referred to in paragraph 45B(2)(a); or

(b) to enforce the terms of a covenant; and, while such an authorization remains in force:

(c) in the case of an authorization to require the giving of, or to give, a covenant:

(i) the covenant is not unenforceable by reason of subsection 45B(1); and

(ii) subsection 45B(2) does not apply in relation to the covenant; or

(d) in the case of an authorization to enforce the terms of a covenant:

(i) the covenant is not unenforceable by reason of subsection 45B(1); and

(ii) paragraphs 45B(2)(b) and (c) do not apply in relation to the covenant.

(6) An authorization granted by the Commission to a person under any of the preceding provisions of this section to:

(a) make a contract or arrangement or arrive at an understanding;

(b) give effect to a provision of a contract, arrangement or understanding;

(c) require the giving of, or give, a covenant; or

(d) enforce the terms of a covenant; has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party to the contract, arrangement or understanding or as a proposed party to the proposed contract, arrangement or understanding, or as a person who is or would be bound by, or entitled to the benefit of, the covenant or the proposed covenant, as the case may be.

(6A) Subject to this Part, the Commission may, on application by or on behalf of a corporation, grant an authorisation to the corporation to make a particular disclosure of information to which section 44ZZW or 44ZZX would or might apply. While the authorisation remains in force, that section does not apply in relation to the corporation making the disclosure.

(6B) The Commission does not have power to grant an authorisation under subsection (6A) to a corporation to make a particular disclosure of information if the disclosure occurred before the Commission makes a determination in respect of the application.

(6C) An application made to the Commission under subsection (6A) for an authorisation in relation to a particular disclosure of information may be expressed to be made also in relation to one or more other similar disclosures of information. If an application is so expressed, the Commission may grant a single authorisation in respect of all the disclosures or may grant separate authorisations in respect of any one or more of the disclosures.

(7) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person, and to any other person acting in concert with the first‑mentioned person, to engage in conduct to which section 45D, 45DA or 45DB would or might apply and, while such an authorization remains in force, that section does not apply in relation to the engaging in that conduct by the applicant and by any person acting in concert with the applicant.

(7A) Subject to this Part, the Commission may, on application by or on behalf of a person, grant an authorisation to the person to engage in conduct to which section 45E or 45EA would or might apply. While the authorisation remains in force, that section does not apply in relation to the person engaging in that conduct. (8) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation to engage in conduct that constitutes or may constitute the practice of exclusive dealing and, while such an authorization remains in force, section 47 does not prevent the corporation from engaging in that conduct in accordance with the authorization.

(8AA) If:

(a) the Commission grants an authorization to a corporation to engage in particular conduct under subsection (8); and

(b) the particular conduct referred to in the authorization is conduct expressly required or permitted under a contract, an arrangement, an understanding or an industry code of practice; then:

(c) the authorization has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party or proposed party to the contract, arrangement, understanding or code; and

(d) the authorization may be expressed so as to apply to or in relation to another person who becomes a party to the contract, arrangement, understanding or code at a time after the authorization is granted.

(8AB) For the purposes of subsection (8AA), a reference in that subsection to a contract, an arrangement, an understanding or an industry code of practice includes a reference to a proposed contract, a proposed arrangement, a proposed understanding or a proposed industry code of practice (as the case requires).

(8A) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to engage in conduct that constitutes (or may constitute) the practice of resale price maintenance. While the authorisation remains in force, section 48 does not prevent the person from engaging in that conduct in accordance with the authorisation.

(8B) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant it an authorisation:

(a) to make a dual listed company arrangement; or

(b) to give effect to a provision of a dual listed company arrangement; and, while such an authorisation remains in force:

(c) for an authorisation to make a dual listed company arrangement—section 49 does not prevent the corporation from:

(i) making the arrangement in accordance with the authorisation; and

(ii) giving effect, in accordance with the authorisation, to any provision of the arrangement so made; and

(d) for an authorisation to give effect to a provision of a dual listed company arrangement—section 49 does not prevent the corporation from giving effect to the provision in accordance with the authorisation.

(8C) An authorisation granted by the Commission to a corporation under subsection (8B) has effect as if it were also an authorisation in the same terms to the other corporation named or referred to in the application for the authorisation as a party to the arrangement or proposed arrangement.

(8D) Subject to subsection 49(2), the Commission does not have power to grant an authorisation to a corporation to make a dual listed company arrangement if the arrangement has been made before the Commission makes a determination in respect of the application.

(9) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to acquire a controlling interest in a body corporate (within the meaning of section 50A) and, while such an authorisation remains in force, section 50A does not, to the extent specified in the authorisation, apply in relation to the acquisition of that controlling interest.

(10) An authorization to a corporation under subsection (1A) or (1) may be expressed so as to apply to or in relation to another person who:

(a) in the case of an authorization to make a contract or arrangement or arrive at an understanding—becomes a party to the proposed contract or arrangement at a time after it is made or becomes a party to the proposed understanding at a time after it is arrived at; or

(b) in the case of an authorization to give effect to a provision of a contract, arrangement or understanding—becomes a party to the contract, arrangement or understanding at a time after the authorization is granted.

(11) An authorization under subsection (5) may be expressed so as to apply to or in relation to another person who: (a) in the case of an authorization to require the giving of, or to give, a covenant—becomes bound by, or entitled to the benefit of, the proposed covenant at a time after the covenant is given; or (b) in the case of an authorization to enforce the terms of a covenant—becomes bound by, or entitled to the benefit of, the covenant at a time after the authorization is granted.

(12) The Commission does not have power to grant an authorization to a corporation to make a contract or arrangement, to arrive at an understanding or to require the giving of, or to give, a covenant if the contract or arrangement has been made, the understanding has been arrived at or the covenant has been given before the Commission makes a determination in respect of the application.

(13) An application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract (including an application mentioned in subsection (8AA)) may be expressed to be made also in relation to another contract or proposed contract that is or will be, or in relation to two or more other contracts or proposed contracts that are or will be, in similar terms to the first‑mentioned contract or proposed contract and, where an application is so expressed, the Commission may grant a single authorization in respect of all the contracts or proposed contracts or may grant separate authorizations in respect of any one or more of the contracts or proposed contracts.

(14) Where an application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract is expressed in accordance with subsection (13) to be made also in relation to another contract or contracts or proposed contract or proposed contracts:

(a) the application shall set out:

(i) the names of the parties to each other contract; and

(ii) the names of the parties to each other proposed contract where those names are known to the applicant at the time when the application is made; and

(b) if an authorization is granted in respect of a proposed contract the names of the parties to which were not so known to the applicant, the authorization shall, by force of this subsection, be deemed to be expressed to be subject to a condition that any party to the contract will, when so required by the Commission, furnish to the Commission the names of all the parties to the contract.

(15) In subsections (13) and (14):

(a) contract includes an arrangement, understanding, industry code of practice or covenant and proposed contract has a corresponding meaning; and

(b) the reference to the parties to a contract or proposed contract shall, for the purposes of the application of those subsections in relation to a covenant or proposed covenant by reason of paragraph (a) of this subsection, be read as a reference to the persons who are or will be, or but for subsection 45B(1) would be, respectively bound by, or entitled to the benefit of, the covenant or proposed covenant.

(16) A corporation that has made an application to the Commission for an authorisation, or a person other than a corporation who has made an application to the Commission for an authorisation under subsection (9), may at any time, by notice in writing to the Commission, withdraw the application.

Amended by Competition and Consumer Amendment Act (No 1) 2011 (Act 185 of 2011)

Amendments containing reference to Division 1A of Part IV (price signalling) inserted - to come into operation on 6 June 2012. Schedule 1 Section 5: After subsection 88(6)

(6A) Subject to this Part, the Commission may, on application by or on behalf of a corporation, grant an authorisation to the corporation to make a particular disclosure of information to which section 44ZZW or 44ZZX would or might apply. While the authorisation remains in force, that section does not apply in relation to the corporation making the disclosure.

(6B) The Commission does not have power to grant an authorisation under subsection (6A) to a corporation to make a particular disclosure of information if the disclosure occurred before the Commission makes a determination in respect of the application.

(6C) An application made to the Commission under subsection (6A) for an authorisation in relation to a particular disclosure of information may be expressed to be made also in relation to one or more other similar disclosures of information. If an application is so expressed, the Commission may grant a single authorisation in respect of all the disclosures or may grant separate authorisations in respect of any one or more of the disclosures.

More history forthcoming